Fifteen Eighty Four

Academic perspectives from Cambridge University Press


Reconstruction, Retrogression, Retrenchment, and the Roberts Court

Cedric Merlin Powell

Every moment of transformative racial progress in American history has been met with violence to preserve white supremacy and the subordination of BIPOC. Scholars and authors have detailed how the Court legitimizes oppression and the advancement of whiteness as the defining feature of American political and constitutional culture. The three periods of Reconstruction—from the end of slavery to the Civil Rights Movement, to the emergence of the movement for Black Lives—have been forcefully (and often violently) resisted in an all-out attempt to preserve whiteness as the foundation of a colour line that was only formally erased. The structure of systemic racism and structural inequality has remained intact because progress is short-lived and incremental. There is always a slide backwards (retrogression) as we reach for a democracy of inclusion, the Republican response has been fully to embrace the oppressive power of white supremacy (retrenchment).

Post-Racial Constitutionalism and the Roberts Court: rhetorical neutrality and the perpetuation of inequality analyses how the Roberts Court plays an essential role in advancing neutrality— “the way to stop discrimination on the basis of race is to stop discriminating on the basis on race”—to promote post-racialism. No use of race, even if it is in the promotion of eradicating inequality, is appropriate because we have a fair and neutral process that is legitimate. The Court has created a democratic myth of societal progress by promoting post-racialism: race and racism is never acknowledged, so the Court consistently reaches conclusions that erase the fundamental rights of historically oppressed groups.  In comprehensive detail, the book discusses Rhetorical Neutrality, how the Court expresses itself through the language of neutrality. The Court advances three myths: (i) it ignores or significantly revises history; (ii) defines discrimination so narrowly that it is a rare occurrence in society; and (iii) offers post-racial explanations for the existence of structural inequality, which the Court has never acknowledged.  “The Supreme Court has played an essential role in the maintenance of white domination and advancement of anti-Black racism.  It legitimizes structural inequality and all its devastatingly oppressive manifestations” mainly by utilizing neutrality as a rationale for its decision-making and tacit acceptance of inequality as the natural state of affairs of oppression. We are witnessing an aggressive effort by the Court to reaffirm its post-Reconstruction jurisprudence of the late nineteenth and early twentieth century.

Beginning with the Court’s early post-racial Reconstruction decisions, the book connects the Court’s nineteenth century anti-Black jurisprudence with the modern Roberts Court’s continuation of this legacy of oppression.  Much of what the Court does to support its own legitimacy and relevance is to mirror anti-Black public sentiment by pretending to be neutral, the Court’s post-racial constitutionalism reflects the backlash, rooted in white supremacy, against any progressive efforts to eradicate structural inequality. Each chapter explores how the Roberts Court is dismantling anti-discrimination law by (i) prohibiting race-conscious remedies; (ii) promoting neutral process language to explain inequality as natural; (iii) targeting any societal or political gains made by African-Americans as unfair racial windfalls; and (iv) reinterpreting constitutional and statutory principles so that discrimination is narrowly defined and standards of proof are raised so that it is virtually impossible to prove discrimination. post-racial constitutionalism and the Roberts court is especially compelling because it offers a full-scale Critical Race Theory analysis of the Court’s race decisions, but it also points to the October 2022 Term of the Court. The last chapter of the book describes how the Court has gutted the Voting Rights Act and the fundamental right to vote, but these devastating opinions are only the beginning. With a supermajority, led by Justice Alito, the Court is expanding state power so that state legislatures will determine the rights of citizens without interference from the federal government. This is anti-Reconstruction backlash the third time around.

Post-racial constitutionalism and the Roberts court is especially timely, given the start of the October 2022 Supreme Court Term and the emergence of an Alito supermajority primed to further decimate voting rights, affirmative action, and personal autonomy. It provides a comprehensive and insightful analysis of how neutral rhetoric, the post-racial language of the Court, preserves and strengthens systemic racism and structural inequality. It is only by understanding the Court’s legitimizing influence that we can hope to disrupt engrained systems of oppression in American society, and break the cycle of transformative social change followed by retrogression (a step back toward subordination) and retrenchment (removing and replacing anti-discrimination laws because they are no longer needed). The book offers an in depth analysis of how the Court imposes its own post-racial ideology to erode, stall, and halt any progress for African-Americans and other people of colour.

Post-Racial Constitutionalism and the Roberts Court by Cedric Merlin Powell

About The Author

Cedric Merlin Powell

Cedric Merlin Powell is the Wyatt, Tarrant & Combs Professor of Law and Distinguished Teaching Professor at the University of Louisville Brandeis School of Law. His extensive publi...

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